Ram Das v. State of U. P. — 1969 DIGILAW 287 (ALL)

JUDGMENT Gyanendra Kumar, J. - This is an application under section 561-A, Cr.P.C. praying for review and vacation of the order of S.D. Singh, J. dated December 1, 1967, dismissing Revision No. 911 of 1966, filed by the applicant and maintaining his conviction and sentence under section 16 read with S. 7(1) of the Prevention of Food Adulteration Act XXXVII of 1954. 2. The only point urged oil behalf of the applicant is that the prosecution of the applicant was lodged with inordinate delay. with the result that he was deprived of the valuable right guaranteed to him under section 13 of the Food Adulteration Act by getting his Hart of the sample of milk tested by the Director of the Central Food Laboratory, Calcutta, whose report was to be conclusive evidence, regarding adulteration or otherwise of the sample of milk in question. 3. In order to appreciate the contention of the applicant's counsel, it is necessary to state certain facts and dates. The applicant carries on the business of selling milk at Hapur, in the district of Merrut. On March 25, 1965 the Food Inspector of Hapur Municipality purchased 12 chhataks of milk for 51 np. and after adding the requisite quantity of preservative called formaline to it, he divided the milk into three phials, one of which was given to the applicant, the second was retailed in the office of the Hapur Municipality and the third was sent to the Public Analyst for examination and report. The Public Analyst in his report dated April 12, 1965 found that the sample was deficient in non fatty solids to the extent of 21 per cent. On July 3, 1965 an application was moved for necessary sanction to file a complaint against the accused, which was granted in due course. But it was on September 3-1965 that the complaint was actually instituted before the S.D.M. Hapur. On that very date September 3, 1965 the Magistrate issued notice to the accused fixing September 17, 1965 for the hearing of the case. However, the process-server, reported that the applicant was away to Assam and that another date may be fixed in the case. Accordingly on September 17, 1965 fresh notice was issue to the applicant for his appearance on October 15, 1965. However, the process-server, reported that the applicant was away to Assam and that another date may be fixed in the case. Accordingly on September 17, 1965 fresh notice was issue to the applicant for his appearance on October 15, 1965. This time the notice was served personally on September 25, 1965 and he appeared in Court, as required, on October 15, 1965. 4. The argument of the learned counsel for the applicant is that on account of the delay in launching the prosecution, the applicant was deprived of the valuable right to get examined that part of the sample which bad been given to him, by the Director of the Central Food Laboratory, Calcutta, whose report was to be conclusive evidence regarding adulteration or otherwise of the applicant's milk, because in the meantime his sample of the milk must have deteriorated and decomposed to such an extent that it became unfit for chemical examination. In this connection reliance has been placed by Shri Swami Dayal, learned counsel for the applicant, on the case of Municipal Corporation of Delhi v. Ghisa Ram, 1967 ACC 97 That was a case of sale of the alleged adulterated curd and not milk. V. Bhargava, J., delivering the judgment of the Bench, came to the conclusion that according to the expert opinion if a preservative was added to the sample of curd and it was kept at room temperature, the percentage of fat and non fatty solid contents for the purpose of analysis would be retained for about four months, and in case it was kept in a refrigerator, after adding the preservative, the total period which may be available for making analysis, without decomposition, will be six months. 5. It is true that when the Food Inspector handed over the sample of milk to the applicant, he was not expected to keep it in a refrigerator, but the period during which milk remains fit for chemical analysis, after the requisite quantity of Formaline has been added to it, is ten months. In this connection reference may be made to Cr. Revision No. 1912 of 1962, Gokul Chand v. State and other connected cases which were decided by Mithur, J. on September by 3J, 1965. In those cases Mathur J., had got the samples of milk, to which the requisite quantity of preservative had been added, analysed by the Public Analyst. In this connection reference may be made to Cr. Revision No. 1912 of 1962, Gokul Chand v. State and other connected cases which were decided by Mithur, J. on September by 3J, 1965. In those cases Mathur J., had got the samples of milk, to which the requisite quantity of preservative had been added, analysed by the Public Analyst. The experiments were carried on for about one year and it was found that chemically preserved milk with Formaline remained fit for analysis for about 10 months. Gokul Chand's case (supra) was followed by B.D. Gupta. J. in Babboo v. State, 1969 ACC 130. 6. In the present case the applicant had appeared in Court to answer the charge only after about six months from the date on which the sample of milk was collected from him by the Food Inspector. It is, therefore, impossible to hold that the sample of milk which had been handed over by the Food Inspector to the applicant, after adding Formaline to it, could have deteriorated or decomposed, by the time the accused had full opportunity to avail himself of the benefit of the provisions contained in. S. 13 of the Prevention of Food Adulteration Act, by sending his sample of milk for chemical analysis to the Director the Central Food Laboratory, Calcutta. 7. In this case the applicant had appeared in the trial court on October 15, 1965 but he did not choose to exercise the right of sending his sample for analysis to the Director of the Central Food Laboratory, Calcutta. So he cannot make any grievance now to the effect that on account of the alleged delay on the part of the prosecution he had been denied the right to avail himself of the provisions of sub-S. (2) of S. 13 of the Food Adulteration Act. In Ghisa Ram's case (supra) the Supreme Court emphasised this aspect in the following words : "It is when the accused exercises this right that a certificate has to be given by the Director of the Central Food Laboratory and that certificate then supersedes the report given by the Public Analyst. If, in any case, the accused does not choose to exercise this right, the case against him can he decided on the basis of the report of the Public Analyst". 8. If, in any case, the accused does not choose to exercise this right, the case against him can he decided on the basis of the report of the Public Analyst". 8. In the instant case the accused, though he had ample opportunity to do so, did not care to exercise the right of getting his sample analysed by the Director of the Central Food Laboratory, within a period of 10 months or so from the date of taking of the sample. He cannot, therefore, make a grievance of the matter at this stage. For exercising such an option, the accused had to move the trial court and had further to deposit the requisite fee of the Director of the Central Food Laboratory for analysing the sample in question. But in the present case, the accused did nothing of the kind. 9. For the foregoing reasons we find that this application is without substance d is accordingly dismissed.